- Improve transparency and efficiency
- Reduce burden on petitioners
- Align regulations with current business practices
Key changes include:
- Elimination of itinerary requirement
- Clarification of non-speculative employment
- Enhanced H-1B lottery selection rules
- Stronger emphasis on specialty occupation and compliance
Client-Site vs. In-House Employment Compliance:
Although control is no longer the central test, compliance at client sites remains critical. Employers must still:
- Maintain clear documentation of the employment relationship
- Ensure accurate LCAs, support letters, and project details
- Be ready for USCIS site visits at either location
In contrast, in-house roles generally face fewer hurdles but still require thorough documentation of job duties, internal work, and employee qualifications.
2. Specialty Occupation – Proving It Post-ITServe:
One of the core H-1B eligibility requirements remains the specialty occupation test. Whether the position is in-house or client-site based, employers must demonstrate that the offered position:
- Requires theoretical and practical application of specialized knowledge
- Requires at least a bachelor’s degree (or its equivalent) in a specific specialty
A. In-House Employment:
For positions based at the petitioner’s worksite, the following should be included:
- Clearly defined job duties: Avoid vague or generic terms. Duties must align with the specialized field.
- Occupational match: The job should closely match the OOH-defined roles (e.g., Software Developer, Data Scientist).
- Educational requirement: The degree field must correspond with the position’s duties and reflect industry standards.
- Organizational chart: Include reporting hierarchy to show the Beneficiary’s role and oversight.
- Project documentation: Internal project timelines, software development lifecycle (SDLC), and technical specs can demonstrate that work exists.
Example: A Software Engineer working on a proprietary healthcare analytics platform should include detailed documentation of the internal software being developed, the engineer’s role in the architecture and testing phases, and any relevant technologies used.
B. Client-Site Employment:
While the employer-employee relationship test has evolved, USCIS still expects evidence of bona fide employment at the time of filing. Include:
- Master Service Agreement (MSA), Statement of Work (SOW), and Purchase Orders (POs) outlining the scope and duration
- End-client letters confirming job duties, required qualifications, and reporting structure
- Even though daily control is not mandatory, demonstrating active involvement, supervision, and employment conditions is still important.
3. Bona Fide Employment & Compliance Under the Modernization Rule:
What Is a Bona Fide Job Offer?
USCIS will examine whether the job offer:
- Is non-speculative (i.e., real and available at the time of filing)
- Is supported by actual work assignments, projects, and budgets
- Demonstrates that the Beneficiary will perform duties qualifying as a specialty occupation
Proof and Documentation to Strengthen Compliance:
I. Updated Form I-129 and Addendums: Complete all employer/employee relationship sections accurately.
II. Labor Condition Application (LCA):
- Must match job title, SOC code, wage level, and work location
- Use Level I wages cautiously—only when duties truly match entry-level standards.
III. Employer Control:
- Show that the H-1B employer maintains payroll, benefits, evaluations, and project oversight.
- If client-based, clarify employer’s role in supervision and management.
IV. Petitioner’s Legal Presence: Employer must be legally present and amenable to service of process in the U.S.
V. Client-Specific Evidence:
- Especially critical when the employee is staffed at a client site
- Differentiate between being a dedicated contractor vs. a commodity service provider
H-1B Itinerary Requirement Eliminated:
- Employers no longer need to submit a detailed itinerary of job locations and timelines.
- However, petitioners must still provide a valid work location with a corresponding LCA at the time of filing.
4. Preparing for USCIS Site Visits:
Site visits remain a common tool for verifying H-1B compliance. These can occur at either the employer’s location or the worksite (especially if third-party). Tips for Site Visit Readiness: For H-1B Petitioner:- Maintain copies of:
- Approved LCA
- Offer letter
- Organizational chart
- Job description
- Employment agreement
- Be prepared to explain the employee’s day-to-day duties and supervisory structure
For Client Site:
- Alert your client’s HR or project manager of the potential for visits
- Ensure front desk or security can direct USCIS to a manager familiar with the H-1B worker
- Keep updated SOWs and proof of assignment onsite
Conclusion:
The post-ITServe H-1B world is more accommodating to modern employment models like remote work and third-party consulting, but documentation, transparency, and proactive compliance are more critical than ever. Whether you’re employing a software developer at your own office or placing a systems analyst with a Fortune 500 client, your ability to clearly prove the role is a specialty occupation and the job is real and compliant will determine the petition’s success.
If you’re a staffing agency or in-house employer navigating these new changes, consider training your HR and legal teams—or partnering with experienced immigration counsel—to ensure your H-1B program remains strong and audit-ready.